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2015 DIGILAW 81 (ORI)

Ramamani Deo @ Samal v. Gangadhar Aich

2015-02-05

D.DASH

body2015
JUDGMENT This appeal has been preferred challenging the judgment and decree passed by the learned Additional District Judge, Jajpur in T.A. No. 25 of 2004 confirming the judgment and decree passed by the learned Civil Judge (Junior Division), Jajpur in T.S. No. 286 of 1995 by non-suit the plaintiff/appellant. 2.The facts necessary for disposal of this appeal as hereunder:- Appellant as the plaintiff filed the suit for cancellation of registered sale-deed dated 10.05.1995 and declaration that respondent No. 1 (defendant no. 1) is not the adopted son of the respondent no. 3 (defendant no. 3), and her husband with further prayer for declaration that four sale-deeds are not binding on him and also for decree of permanent injunction. During the progress of the suit, parties filed a petition for compromise. However, as per the submission from both sides, the petition was not taken up for consideration as it was no more pressed by them. So hearing of the suit commenced by the examination of witnesses. Appellant as the plaintiff examined herself as P.W. 1 and also faced cross-examination. During her examination, she admitted the case of the respondent no. 1. The defendant no. 1 being examined as D.W. 1, asserted her claim as projected in the written statement. In view of above, finally the trial Court dismissed the suit. Thereafter, the plaintiff filed an appeal before the lower appellate Court taking a ground that the judgment is out and out a compromise decree and the compromise being not read over and explained to her, the judgment and decree cannot stand in the eye of law. It is further submitted that once the compromise petition was filed, the trial Court was under obligation to go for an inquiry as to whether such compromise was lawful or not. So, here is a case where the plaintiff herself has withdrawn her case by giving the evidence on oath and has chosen not to contest the suit admitting the entire case of the contest defendant and that has led the Court dismiss the suit. The appellate Court for that reason has confirmed the judgment and decree whittling down the challenge made by the plaintiff before it. The appellate Court for that reason has confirmed the judgment and decree whittling down the challenge made by the plaintiff before it. 3.This appeal has been admitted on the substantial question of law as under :- “whether the defendant is discharged from the burden of proof specially when he was not adduced any evidence on the issues, because the plaintiff has not reserved his right of producing evidence by way of answer as contemplated under Order 18, Rule 3 of the C.P.C.”? 4.Learned counsel for the appellant in course of hearing submits that the trial Court in view of the filing of the compromise petition ought to have first disposed of the same on merit by making an inquiry as regards its lawfullness and then ought to have directed the parties to enter into the arena of contest. Thus, according to him that is the substantial question of law for the purpose of admission of this appeal in addition to the one already framed. He also urges that even in spite of plaintiff giving a good bye to his case, the burden of proof resting on defendant was to be discharged. Learned counsel for the appellant has placed the reliance on the decision of this Court in case Bhaja Govinda Maikap Vrs. Janaki Dei; AIR 1980 Orissa 108. Learned counsel for the respondent submits that there was no occasion for the Court for making an inquiry as contemplated under Order 23 Rule 3 of the Code of Civil Procedure. 5.Learned counsel for the respondent on the other hand submits that when both sides did not press the compromise petition, the Court had no other option, but to sweep it under the carpet without considering and thereafter when during evidence, the plaintiff herself accepted the case of the defendant by completely giving a goodbye to her own case, the Court below has rightly dismissed the suit and the same has rightly been confirmed by the lower appellate Court. While distinguishing the above decision cited by the learned counsel for the appellant in case of Bhaja Govinda Maikap (supra), he has placed reliance upon the decision of the Apex Court in case of Daljit Kaur and another Vrs. Muktar Steel Private Limited and others; 2014 (1) OLR SC 595. While distinguishing the above decision cited by the learned counsel for the appellant in case of Bhaja Govinda Maikap (supra), he has placed reliance upon the decision of the Apex Court in case of Daljit Kaur and another Vrs. Muktar Steel Private Limited and others; 2014 (1) OLR SC 595. He urges that when the plaintiff admitted the entire claim of defendant, the burden of proof is to be held to be no more resting on the defendant. 6.On the basis of admitted factual position as it emerges out, this Court finds the submission of the learned counsel for the appellant as not acceptable that in spite of the fact that when both sides did not press the compromise petition for disposal of the suit in terms of that as indicated therein, it was still incumbent upon the trial Court to go for an inquiry. The question of inquiry arises when one side asserts and other side refutes. That is what it has been held in the case of Bhaja Govinda Maikap (supra) where compromise being entered into some amendment were consequentially and simultaneously were to be carried out in the plaint by bringing some other properties as the subject matter of the suit. So, direction was given to the plaintiff to amend the plaint accordingly and as that was not complied with, the petition for compromise was rejected. The matter thus came before this Court where the order being set aside, it was held that the Court had no authority to reject the compromise petition in its entirety, so far as the existing subject matter of the suit is concerned. Before the Court after remand where the petition for compromise came up for consideration as the plaintiff objected, it was rejected. Before the Court after remand where the petition for compromise came up for consideration as the plaintiff objected, it was rejected. So in revision, this Court considering the provision of Order 23 Rule 3 of the Code of Civil Procedure as it stood after amendment in 1976, said that in such an eventuality when a party alleges that the suit has been adjusted by a lawful agreement and accordingly he applies to the Court to record an agreement and to pass a decree in accordance therewith but the other party denies it or wishes to resile from it, the question whether the Court has the power in that one case to decide if an agreement was effected and to pass a decree accordingly and in the other case to pass a decree in spite of the other party’s reluctance arose to be answered. In view of the words “where it is proved to satisfaction of the Court that a suit has been adjusted wholly or in part”; it was held that the Court has the power under Rule-3 of Order 23 of the Code to decide, whether as a fact the alleged agreement or compromise was made and if it is satisfied that it was made, to record it”. Accordingly, in that view of the matter finally this Court directed to record the compromise driving the plaintiffs to have their grievances if any redressed in separate action. 7.This is not the position in the present case. Here both the parties did not finally pres the compromise petition and submitted before the Court not to record it and rather wanted their evidence to be recorded. Accordingly the judgment has been rendered in the suit. So, the decision cited by the learned counsel for the appellant does not help the case of the appellant in any manner. Now, coming to the decision in case of Daljit Kaur (supra); a compromise was entered into by the parties and when the defendants disputed the said compromise, a prayer was made for conducting an inquiry which was resisted by the defendants. The Court below rejected the application saying that the plaintiff having been not carried out the amendment in the plaint in compliance to the order of the Court; the prayer for inquiry is not maintainable. The Court below rejected the application saying that the plaintiff having been not carried out the amendment in the plaint in compliance to the order of the Court; the prayer for inquiry is not maintainable. The suit was taken up for hearing and during then documents being proved in support of compromise, the trial Court ultimately accepted the compromise. Of course looking to the surrounding circumstances emanating from evidence adduced by the parties, the suit was accordingly decreed. It was confirmed by the lower appellate Court in an appeal under Section 96 of the Code. Further appeal before the High Court also met the same fate and the specific answer given there is that the decree in question was a consent decree and thus the appeal was not maintainable. Reliance for the purpose was placed in case of Puspa Devi Bhagat (dead) through L.R. Sadhana Roy (Smt. ) V. Rajendra Singh and other; (2006) 5 SCC 566 . Finally, the Hon’ble Apex Court, though held the decree to be not a consent one, disagreeing with High Court, however dismissed the appeal agreeing with the High Court on the other score and factual aspect that said decree being passed without any dispute being raised or contested in Court of first instance, the appeal was held not maintainable as it is a decree on compromise. 8.In the instant case, thus, there was no occasion for Court to go for an inquiry with regard to the compromise entered into between the parties and then also the Court had no other option but to non-suit the plaintiff in view of her evidence in Court wholly supporting the case of her adversary and thereby surrendering to the claim as advanced by the opponents. The suit for the reliefs claimed was thus dismissed. 9.Next coming to the substantial question of law as formulated, the answer in my considered view comes in the negative. In the instant case, as against the pleading of the plaintiff, she has gone to depose on oath giving a total good bye to it in accepting the claim of defendant. The pleading is not proof. So the plaintiffs pleadings being pressed into service with supported evidence, the burden of proof of adoption would have squarely rested upon the defendant and the plaintiff would have also in a position to reserve her right as contemplated under Order 18 Rule 3 of the Code. The pleading is not proof. So the plaintiffs pleadings being pressed into service with supported evidence, the burden of proof of adoption would have squarely rested upon the defendant and the plaintiff would have also in a position to reserve her right as contemplated under Order 18 Rule 3 of the Code. That having not been adhered to and during evidence when entire claim of defendant stood admitted, the lower Courts cannot be said to have committed any error in ultimately dismissing the suit in view of plaintiff’s evidence, who is also stopped from further questioning/raising that issue in the absence of satisfactory explanation for withdrawal of such admission made in her evidence during trial as provided under law. In view of the aforesaid, I do not find merit in the submission of the learned counsel for the appellant to formulate the substantial question of law that it was incumbent upon the Court below to first take up an enquiry as regards the compromise which was not pressed into service by both sides. Also the answer to the substantial question of law as formulated is answered accordingly that in view of plaintiff giving a total good byes to her case and giving admitted the opponent’s case the burden of proof no more rested upon him. 10. In the result, the appeal stands dismissed and in the circumstances without cost. Appeal dismissed.